Sunland Construction Co

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1036 (N.L.R.B. 1992)

1036
307 NLRB No. 160
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent and the Charging Party have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
2 We have conformed the notice to the recommended Order.
Sunland Construction Company, Inc. and Brother-
hood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL–CIO.
Cases 10–CA–24874 and 10–CA–25061
June 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On August 23, 1991, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent and the Charging Party filed exceptions,
supporting briefs, and answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sunland Construction
Company, Inc., Courtland, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached notice
is substituted for that of the administrative law judge.2
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten our employees that an em-
ployee received an unfavorable work assignment be-
cause the employee was wearing a badge of the Broth-
erhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL–CIO, or because our
employees wear the badge of any labor organization.
WE WILL NOT discharge, change the work assign-
ments, lay off, or refuse to reinstate our employees be-
cause they engage in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Timothy Owens, Larry Jackson,
Charles F. Kilpatrick, Ralph O. Moore, Dan H.
Murchie, James C. Robbins, Jonathon L. Rudolph, and
Thomas C. Vickers immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole for
any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus in-
terest.
WE WILL notify Timothy Owens, Larry Jackson,
Charles F. Kilpatrick, Ralph O. Moore, Dan H.
Murchie, James C. Robbins, Jonathon L. Rudolph, and
Thomas C. Vickers that we have removed from our
files any reference to their discharges or layoffs and
that the discharges and layoffs will not be used against
them in any way.
SUNLAND CONSTRUCTION COMPANY, INC.
Keith R. Jewell, Esq., for the General Counsel.
Frederic Gover, of Dallas, Texas, for the Respondent.
Michael T. Manley, Esq., of Kansas City, Kansas, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge. This
case was heard in Decatur, Alabama, on April 10, 11, and
12, 1991. The charge in Case 10–CA–24874 was filed on
July 27, 1990. The charge in Case 10–CA–25061 was filed
on November 28, 1990, amended on January 7, and second
amended on January 22, 1991.
A consolidated complaint issued on March 4, 1991. The
complaint alleges that Respondent laid off an employee,
changed the work assignments of an employee, and dis-
charged employees in violation of Section 8(a)(1) and (3)
and that Respondent threatened an employee that an em-
ployee had received a particular work assignment because of
protected activity in violation of Section 8(a)(1) of the Act,
and that Respondent engaged in conduct inconsistent with
the terms of a settlement agreement.
1037SUNLAND CONSTRUCTION CO.
On April 24, 1991, I received from the Charging Party,
copies of Charging Party’s Exhibits 2 and 6. Those exhibits
had been withdrawn from the record for copying. On April
29 and June 4, 1991, I received from Respondent, letters
dated April 25 and May 31 along with Respondent’s Exhibits
7, 8, and 9. Respondent submitted those exhibits for inclu-
sion in the record.
The record shows that Charging Party’s Exhibits 2 and 6
and Respondent’s Exhibits 7, 8, and 9 were received in evi-
dence. Respondent’s Exhibit 9 was already included in the
court reporter’s records.
I shall include in the original record the exhibits men-
tioned above which had not been included in the court re-
porter’s submissions of the exhibits.
During the hearing, General Counsel argued that I should
notice an administrative law judge decision in JD–214–89 as
it regards the issue of animus. That is a decision by Admin-
istrative Law Judge Harmatz involving Respondent at an-
other location.
On June 1, 1991, after the close of the hearing, Charging
Party filed a ‘‘Motion to Take Notice of Subsequent Deci-
sion.’’ Charging Party contends that I should take notice of
another administrative law judge decision involving the Re-
spondent, for the purpose of animus. That is a decision by
Administrative Law Judge Grossman.
On the record, Respondent argued that I should not con-
sider Judge Harmatz’ decision because it did not involve the
same location as is involved in this matter and because that
decision was under consideration by the Board on appeal.
The Charging Party argued that it was proper for me to
consider an administrative law judge decision, citing the case
of Southern Maryland Hospital Center, 293 NLRB 1209
(1989).
On June 8, Respondent filed a response in opposition to
Charging Party’s motion. As to the basis for its opposition
to the Charging Party’s motion, Respondent argued:
The Charging Party asks for the Administrative Law
Judge to take notice of the decision ‘‘for the purpose
of animus.’’ However, Judge Grossman’s decision con-
cerns allegations occurring in 1989, months before any
of the alleged conduct by either the Respondent or the
Charging Party at the case at bar. Furthermore, Re-
spondent’s management of the Courtland, Alabama
project (which is the project involved herein) was com-
pletely different than the management involved in the
three projects under consideration in Judge Grossman’s
decision. All of the relevant decision makers at
Courtland (Danny Stuckey, John Wayne Smith, Greg
Reeves, Dan Stacey, Charlie Russell, and Joe Duran)
had no involvement whatever on the projects involved
in Judge Grossman’s decision. Therefore, it would be
clear error and completely presumptuous to impute
‘‘animus’’ to these individuals or their actions under
the circumstances.
The General Counsel, in his brief, argued that Respond-
ent’s Courtland, Alabama manager of construction, A.B.
Williford, was also involved in the matter heard and decided
by Judge Harmatz.
I have decided that this situation is unlike the situation
that developed in Southern Maryland Hospital Center. As
noted by Respondent, the earlier cases failed to establish ani-
mus among the supervisors here. The General Counsel noted
in his brief that A.B. Williford was involved in the matter
before Judge Harmatz. Although a letter was delivered to
A.B. Williford on July 26 by seven alleged discriminatees in
this matter, there was no showing of actual involvement by
Williford in the matters alleged as violations.
I am unable to consider the decisions of Judges Harmatz
and Grossman in determining whether Respondent illustrated
antiunion animus at its Courtland, Alabama job. I am aware
of evidence in this instant record to the effect that Respond-
ent’s corporate policy is to resist union organization by all
legal means. Moreover, as I find, the evidence does show
animus among the supervisors at Courtland. However, I ar-
rived at those determinations solely on the basis of the record
and without reliance on the decisions of Judges Harmatz and
Grossman.
I make the following findings on the basis of the entire
record, my observation of the demeanor of witnesses, and
after consideration of briefs filed by Respondent and the
General Counsel.
Respondent admitted that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act; that it is a Delaware corporation engaged in the con-
struction business at its place of business in Courtland, Ala-
bama; and that, during the past calendar year, it has received
at its Alabama facilities goods valued in excess of $50,000
directly from suppliers located outside the State of Alabama.
Respondent admitted that the Charging Party (Union) is,
and has been at material times, a labor organization within
the meaning of Section 2(5) of the Act.
On July 26, 1990, Respondent discharged employees Larry
Jackson, Charles F. Kilpatrick, Ralph O. Moore, Dan H.
Murchie, James C. Robbins, Jonathon L. Rudolph, and
Thomas C. Vickers.
On the morning of July 26, the above-mentioned seven
employees that were discharged later that day, delivered a
letter to A.B. Williford, Respondent’s manager of construc-
tion:
Be advised that the International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, AFL–CIO and your construction employ-
ees at the Champion International Mill, Courtland, Ala-
bama are engaged in organizing activity that is pro-
tected under Section 7 of the National Labor Relations
Act.
The below listed employees wish to be identified as
members of the organizing committee:
/s/ Charles F. Kilpatrick
/s/ Thomas C. Vickers
/s/ Ralph O. Moore
/s/ Jonathon Rudolph
/s/ Dan H. Murchie
/s/ Larry Jackson
/s/ James C. Robbins
Respondent stipulated that Kilpatrick, Vickers, Moore, Ru-
dolph, Murchie, Jackson, and Robbins were discharged later
on July 26 because each of those employees wore union
badges on the job. Respondent contented that the employees
were discharged for wearing unauthorized badges which hap-
pened to be union badges. Employees were required to wear
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
badges identifying them as subcontractor employees of
Brown and Root Construction Company. Respondent con-
tends that the employees were prohibited from wearing
badges other than the Brown and Root badges.
One of the discharged employees, Ralph Moore, testified
that he returned to the personnel office on July 30, 1990, and
asked for a copy of the rule regarding wearing unauthorized
badges. Moore testified that Terry, who was in charge of Re-
spondent’s personnel office, told the clerical employee to
show Moore a copy of the rule. Terry then said, ‘‘I don’t
mind hiring union people but I don’t appreciate them trying
to organize the job.’’
Respondent’s rule 42 in its jobsite safety rules states:
42. Badges worn on employee person, other than
company employee badge, are not allowed.
Respondent contended that it prohibited employees from
wearing badges other than Brown and Root badges, in order
to prevent solicitation of any type.
Donald Hathorn testified that he was Respondent’s office
manager at its Courtland site during material times. Hathorn
testified that the no-badge rule prevented solicitation and,
under certain circumstances, could involve safety because a
large badge may be unsafe in some work areas.
After unfair labor practice charges were filed, Respondent
agreed to settle the allegations that its July 26 discharges
were unlawful. That settlement was executed on a regular
NLRB form. Among other things Respondent agreed to make
whole the alleged dischargees by reinstating them to their
former jobs without prejudice to their seniority or other
rights, privileges, or working conditions. The parties stipu-
lated that the seven discharged employees were put back to
work by Respondent on August 16, 1990, and paid back
wages. The parties distinguished back wages from other mat-
ters such as possible benefits in addition to wages.
Ralph O. Moore
In settlement of the charges alleging the July 26 dis-
charges, Respondent put those employees including Ralph O.
Moore back to work. Moore returned on August 16, 1990.
Moore testified that he was told by ‘‘Becky,’’ who handled
employees’ insurance for Respondent, that he was considered
a new employee from August 16 as to his eligibility for in-
surance. The General Counsel contends that evidence, which
was disputed by evidence offered by Respondent, illustrates
that Moore was not reinstated in accordance with the settle-
ment agreement. Instead, according to the position of the
General Counsel, Moore was actually rehired on August 16.
Respondent called two people that testified they were the
only employees, timekeepers, that responded to employee in-
quires on the job about insurance. Those two, Angie Bolan
and Terry Michele Mitchell, testified that Ralph Moore did
not question either of them about his insurance coverage.
After August 16, Moore wore union badges at work and
he solicited employees to support the Union while he was at
work. Moore wore two different union badges. One of
Moore’s union badges was smaller than the other. Moore’s
supervisor, John Wayne Smith, admitted that Moore wore a
union badge while working.
Moore testified that he passed out union leaflets at the job-
site and that some supervisors saw him passing out those
leaflets.
According to Moore, he overheard Superintendent of the
Precipitator McNutt talking over his radio during a conversa-
tion between McNutt and Moore about a week or two after
Moore returned to work on August 16. Moore overheard
McNutt being informed that Jonathon Rudolph was quitting.
McNutt grinned and said, ‘‘Well, I figured that was com-
ing.’’ Jonathon Rudolph was one of the seven employees dis-
charged on June 26. Rudolph, like Moore returned to work
for Respondent on August 16 pursuant to the settlement.
On September 12, 1990, according to Moore, Super-
intendent Greg Reeves came to him and while pointing to
Moore’s union badge, asked Moore where was his small
badge. Moore told Reeves that he had a small badge but that
he wore the large one ‘‘cause it could be seen better.’’ A
week later, while he was on an elevator on the job with Greg
Reeves, Reeves said to Moore, ‘‘You need to get you a large
badge. I can’t read that one.’’ At that time Moore was wear-
ing the smaller of his two union badges. Moore responded
to Reeves, ‘‘I have a large one but I kind of like this one.’’
Reeves said, ‘‘Well, I’ve got some at home if you need
them.’’
Greg Reeves denied that he asked Moore about Moore’s
union badges.
On November 10, 1990, Ralph O. Moore was laid off. His
termination notice indicated as reason for termination, ‘‘re-
duction in force.’’ Some other employees in the same job as
Moore, were retained after November 10.
According to John Wayne Smith, he selected Moore for
layoff rather than other more recently hired welders includ-
ing Doug Patterson who was hired a few days before No-
vember 10. Smith testified that Doug Patterson was able and
willing to perform all assigned jobs. According to Smith,
Moore was reluctant to perform some jobs.
However, Smith admitted that he had never disciplined
Moore because of Moore’s work and Smith testified about
only one specific occasion when, according to Smith, Moore
failed to perform a specific assignment.
Smith testified that during the week before the layoff, his
crew including Moore, was working an ‘‘outage’’ on the old
boiler. During the outage, which according to Superintendent
Danny Stuckey lasted 5-1/2 days, the old boiler was shut
down due to the work. It was important to get the old boiler
back in operation as soon as possible. Therefore, the outage
involved around-the-clock operation.
While working the outage, Moore and work partner Roy
Farlow were unable to guarantee one particular welding job.
Moore testified that particular welding job was so tight that
he had to remove his prescription eyeglasses to perform the
weld. Moore told his supervisor that he could not guarantee
that the weld would pass an X-ray inspection because of his
inability to see. That supervisor, Jack Blankenship, told
Moore that he should not do the weld unless he could guar-
antee it.
According to Smith, instead of complaining that they
could not guarantee the weld, Moore and Moore’s partner,
Roy Farlow, actually refused to perform a weld.
The evidence is unrebutted that Moore was not disciplined
because of his not making the questioned weld. Moore con-
tinued to work until the end of the outage when he, along
1039SUNLAND CONSTRUCTION CO.
with several other employees, including Roy Farlow, were
released in a general layoff. Others, including welder Doug
Patterson, who was employed a few days before Moore’s
layoff, were retained.
During the week before Moore was transferred to the old
boiler on the outage, it was apparent that the premium weld-
ing was running out. Some of the welders had expressed an
intent to leave when the premium work was completed. On
the premium work welders were paid a premium if the work
passed X-ray inspection.
After he returned to work on August 16, Moore com-
plained to Greg Reeves that he had not been assigned enough
premium work. Moore asked and Reeves agreed with Moore
that he did not like Moore.
A few days before the outage work on the old boiler,
Foreman John Wayne Smith asked Moore if he would leave
when the premium work ran out. Moore told Smith that he
would stay on the job. Smith did not deny Moore’s testi-
mony in that regard.
Around the time of the layoff Moore was asked by Danny
Stuckey if he would go to work temporarily on a job of Re-
spondent which was out of State. Moore testified that at that
time Respondent knew that he was under court order not to
leave Alabama. Moore told Stuckey that he could not accept
the out-of-state job because of the court order.
Credibility Determinations
As to credibility, I found Moore to be a believable wit-
ness. I was impressed with his demeanor. In some respects
his testimony was either not contested or it agreed with the
testimony of Respondent’s witnesses. To the extent his testi-
mony conflicted with that of John Wayne Smith and Danny
Stuckey, I credit Moore.
The relevant testimony which was in dispute dealt pri-
marily with Respondent’s bases for its determination that
Moore should be selected for layoff.
Smith and Stuckey testified generally as to Moore’s work
and especially in regard to whether Moore demonstrated a re-
luctance to perform some assigned jobs. However, Smith’s
testimony demonstrated uncertainty as to what if anything,
Moore actually said to him regarding his work preferences.
Moreover, Smith, who testified that Moore wasted time, was
unable to recollect specific occasions in which Smith was
reprimanded or cautioned about wasting time.
The testimony of Respondent’s witness Greg Reeves, con-
struction superintendent of the Boilermakers, illustrated that
approximately a week before Moore was laid off, Respond-
ent was concerned with having enough welders to handle the
planned outage on the old boiler. Around that time Respond-
ent hired welders to handle that added need.
Additionally, according to Greg Reeves, Respondent was
also concerned at that time with maintaining enough welders
because it anticipated that some of the welders would be
leaving because the premium work was ending.
The premium work was work that qualified for X-ray ex-
amination, and, if the work passed, the welder received an
additional $30.
Ralph Moore was asked if he would stay after the pre-
mium work ended and he told John Wayne Smith that he
planned to stay until the job ended. Additionally, Moore was
asked if he wanted to take one of Respondent’s out-of-state
jobs.
That evidence illustrates that Respondent was satisfied
with the work of Ralph Moore. In that regard Greg Reeves
testified that Moore was a good welder even though Reeves
also testified that he agreed with Smith’s assessment of
Moore’s work.
I did not find Greg Reeves to be a believable witness.
However, his testimony as to the events which preceded the
outage on the old boiler and Respondent’s concern with hav-
ing enough welders to take care of both the old and new
boiler work, and its concern with welders leaving when pre-
mium work ended, is in accord with the full record. I credit
that testimony.
That evidence shows that Respondent exaggerated Ralph
Moore’s shortcomings. Rather than finding Moore’s work
was generally unacceptable, John Wayne Smith was con-
cerned during the first week in November with whether
Moore would be one of the welders that would leave when
the premium work ended and Moore’s supervisors were in-
terested in whether Moore would volunteer for an out-of-
state job.
Additionally, the record cast doubt on the credibility of
Smith and Stuckey’s analysis of the comparative abilities of
Doug Patterson and Ralph O. Moore. According to their tes-
timony they decided to retain Patterson, who admittedly was
a recent hire, as opposed to Moore because Patterson had
demonstrated a full range of ability and willingness to per-
form welding jobs.
An examination of Patterson’s employment record shows
that he was hired at the jobsite on November 7, 1990. That
shows that Patterson had worked no more than 3 days before
Moore was laid off on November 10. According to John
Wayne Smith, during the days before Moore’s layoff, Patter-
son was observed by him working on the outage at the old
boiler performing the job which Moore could not guarantee.
Obviously that one job would not justify an objective deter-
mination that Patterson could and was willing to perform a
full range of welding jobs.
In view of the above, my observation as to demeanor and
the full record, I find that both Smith and Stuckey failed to
testify truthfully regarding the reason why they selected
Ralph O. Moore for layoff.
There is testimony, including for example the testimony of
Aubrey Gregg, known as Bobo, dealing with Ralph Moore’s
work. Gregg was critical of the qualify of Moore’s work. On
cross, Gregg demonstrated confusion as what he observed
about Moore’s work especially during the outage job. I was
not impressed with Gregg’s demeanor or with his ability to
recall what occurred during the fall 1990.
I found that Greg Reeves’ denial that he questioned Moore
about union badges was not believable. Reeves appeared to
have vacillated in his testimony especially in regard to Ralph
Moore. At times he testified that Moore was a good em-
ployee. Then in what appeared to be efforts to bolster the
importance of his testimony he testified that he agreed with
John Wayne Smith’s criticism of Moore. I do not credit
Reeves’ testimony to the extent it conflicts with the testi-
mony of Moore.
In line with my credibility findings, I find that Moore did
not refuse to perform an assigned job on the week before he
was discharged.
The direct evidence regarding that incident was unrebutted.
Moore testified that he told Foreman Jack Blankenship that
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he could not guarantee a weld because the area was so close
that he could not wear his eyeglasses. Moore told
Blankenship that he did not think anyone could guarantee to
shoot 100 percent on that weld. Blankenship told Moore not
to do the weld.
Blankenship did not testify. Moore’s testimony regarding
his conversation with Blankenship was not rebutted.
John Wayne Smith testified that he was told by Moore’s
welding partner Roy Farlow that they could not perform the
weld.
To the extent their testimony conflicts, I credit Moore. As
shown above Moore was not specifically rebutted in his testi-
mony regarding the problem weld during the outage work.
Additionally, I found that Smith exaggerated problems with
Moore’s work during his testimony.
I find that Respondent failed to prove that Moore illus-
trated reluctance to perform some assigned work. There was
nothing other than subjective opinion testimony from John
Wayne Smith, which supported that assertion by Smith.
The evidence illustrated that Respondent never did express
unhappiness or concern with the quality of Moore’s work
until Moore was laid off on November 10. I find that the
record did not support Respondent’s contention that Moore
was an inefficient worker.
Findings
The record shows that Ralph O. Moore, and the six other
employees named in the complaint, were discharged on July
26, 1990, after they presented a letter to Respondent. That
letter advised Respondent that the seven employees were on
the union organizing committee. Respondent subsequently
confronted each of the seven at their work about their wear-
ing union badges. All seven were fired and Respondent as-
serted that each was fired because he was wearing a union
badge in violation of Respondent’s policy which prohibited
wearing anything other than subcontractor badges. The
record shows that was the only occasion in which employees
were disciplined for wearing badges.
In view of the above, I find that the General Counsel
proved, prima facie, that Respondent discharged the seven
named employees on July 26 because of their union activities
in violation of Section 8(a)(1) and (3) of the Act. In that re-
gard, I also find that Respondent’s rule against wearing
badges was overly broad. That rule prohibited the wearing of
badges at any time while at work and thereby prohibited
badges during breaktimes as well as during worktimes. The
evidence included some testimony to the effect that a large
badge may pose safety problems under certain circumstances.
However, the rule itself prohibited all badges other than sub-
contractor badges, without regard to size. The evidence illus-
trated that the rule was established to prohibit solicitation. I
find that the record illustrated that the rule was not based on
safety considerations and that it was used in an overly broad
manner to protect against solicitation. In the only occasion
when it was enforced it was used to prohibit union solicita-
tion. The record failed to show special circumstances which
justified Respondent’s rule. Asociacion Hospital del Maestro,
283 NLRB 419 (1987); Nordstrom, Inc., 264 NLRB 698
(1982); Our Way, Inc., 268 NLRB 394 (1983); Middletown
Hospital Assn., 282 NLRB 541 (1986).
Respondent failed to prove that the seven employees
would have been discharged in the absence of protected ac-
tivities. Respondent asserted the employees were fired be-
cause they were wearing unauthorized badges. However, the
rule prohibiting unauthorized badges was illegally broad. Re-
spondent failed to prove that the seven employees would
have been confronted about their badges absent their presen-
tation of the union organizing letter and absent their badges
being union badges. There was no evidence showing that Re-
spondent routinely confronted employees about unauthorized
badges and the rule prohibiting badges applied to worktime
which would include break periods.
In view of my finding above, I find that Respondent vio-
lated Section 8(a)(1) and (3) by discharging seven employees
on July 26 because of their union activities.
The evidence shows that Respondent rehired instead of re-
instated Ralph O. Moore. Ralph Moore offered evidence
showing that he was treated as a new employee for purposes
of qualifying for employee insurance coverage. The record
was in conflict as to whether Moore was told by a time-
keeper that he would not qualify for insurance for 45 days
after his going back to work on August 16. However, there
was no dispute over Moore’s contention that he was not noti-
fied that his insurance entitlement was ever based on his
original hire date of July 6, 1990.
Although Respondent offered testimony to the effect that
Moore was mistaken in his testimony that a timekeeper told
him that he would not be entitled to insurance until the wait-
ing period after August 16, Respondent failed to rebut Moore
by showing that it ever advised Moore that his insurance en-
titlement was based on his original hire date.
Moore’s employment/termination form shows that he was
hired rather than reinstated, at the jobsite on August 16,
1990. That form also shows that Moore was previously em-
ployed by Respondent from July 6 to 26, 1990.
I find that General Counsel proved a prima facie case that
Moore was treated as a new hire when he returned to work
on August 16, 1990. Moreover, Respondent failed to prove
that Moore was ever treated as a reinstated employee. By its
action in rehiring rather than reinstating Moore, Respondent
failed to comply with the terms of its settlement agreement
which required Moore to be reinstated to his former job
without prejudice to his seniority.
In view of my determination that Respondent failed to
comply with the terms of the settlement agreement when it
failed to reinstate Moore, as well as my finding that Re-
spondent engaged in unfair labor practices after the settle-
ment, the settlement agreement must be set aside. YMCA of
Pikes Peak, 281 NLRB 998 (1988).
The General Counsel alleged that after Moore returned to
work for Respondent on August 16, he was laid off on No-
vember 10, 1990, because of his union activities. Respondent
contended that Moore was laid off because he failed to per-
form on the job as well as other welders that were retained.
The record illustrated that Ralph O. Moore possessed a
wide variety of skills both within and outside his job of
heliarc welder. Moore performed several different welding
jobs while employed by Respondent at Courtland. Moore’s
employment record included an indication that he could per-
form both pressure and nonpressure welding, rigging and
high work, handling construction material, interpret drawings,
handling and setting plant equipment, setting and aligning
equipment, pipefitting, metal work and steel erection.
1041SUNLAND CONSTRUCTION CO.
The record proved without conflict that Moore was laid off
on November 10, 1990, at a time when Respondent retained
new hires including Boilermakers welders Douglas Patterson
and Edgard L. Pounds, who had been employed for only a
few days.
Moore was designated as a Boilermakers welder (BMW1),
as were Patterson and Pounds.
The record shows that Respondent hired Edgard L. Pounds
as a BMW1 during the week ending November 4, 1990.
Douglas Patterson was hired on November 7, 1990. Patterson
worked 16 weeks before he was laid off during the week
ending March 24, 1991. Pounds worked 20 weeks before he
was laid off during the week ending March 24, 1991.
Additionally, as Charging Party pointed out in its brief,
Respondent hired several Pipefitter welder employees after
Moore was laid off. Moore was qualified to perform in that
job classification and Respondent admittedly had a policy of
cross-crafting its employees.
From November 10 until its Courtland job ended, Re-
spondent hired at least eight Pipefitters welder (PFW1) em-
ployees.
The evidence including Moore’s July 26 discharge;
Moore’s rehire as opposed to reinstatement; the comments by
Respondent’s personnel manager that he did not appreciate
employees trying to organize the job; Superintendent
McNutt’s comments regarding Jonathon Rudolph quitting;
and the questioning of Moore by Greg Reeves regarding
Moore’s union badge, illustrates Respondent’s animus against
Moore because of Moore’s union activities.
As shown I credit Moore’s testimony regarding all the
above elements which, with the exception of matters regard-
ing the rehire question and Greg Reeves’ denial that he ques-
tioned Moore about the union badge, was not denied. There
was no denial offered regarding the alleged comments by the
personnel manager or by Superintendent McNutt even though
McNutt testified about other matters.
The record, including especially the matters discussed
above under credibility determinations, shows that Respond-
ent’s asserted bases for Moore’s November 10 layoff, were
pretextuous. The record shows that Respondent falsified its
reason for selecting Moore for layoff. John Wayne Smith and
Danny Stuckey testified that Moore was selected for layoff
by them because of his work record and because Douglas
Patterson demonstrated that he could more competently per-
form a wide range of welder jobs than Smith.
Credited evidence proved that Smith and Stuckey testified
falsely. The record proved that shortly before Moore was laid
off, Smith asked Moore to stay on rather than quit over the
completion of premium work and they asked Moore if he
was interested in transferring to an out-of-state job. That evi-
dence plus evidence showing they did not have an oppor-
tunity to determine that Douglas Patterson could perform a
wider range of welding jobs more competently than Moore,
demonstrated that Smith and Stuckey misrepresented the rea-
sons for the layoff of Moore.
‘‘A pretextual reason, of course, supports an inference of
an unlawful one.’’ Keller Mfg. Co., 237 NLRB 712, 717
(1978).
I find that the General Counsel proved that Ralph O.
Moore and six other employees were discharged on July 26
because of their union activities; that Respondent rehired, but
did not reinstate, Moore; and that Ralph O. Moore was se-
lected for layoff on the bases of allegations which were
shown to be false.
In addition to the evidence showing that Respondent’s as-
serted bases for Moore’s layoff were pretextuous, the record
proved that Moore engaged in union activities and that Re-
spondent knew of those activities which occurred both on
July 26 and after Moore’s rehire on August 16.
In view of the entire record especially that evidence show-
ing animus, knowledge of Moore’s union activities, and pre-
text as to the basis for Moore’s November 10 layoff, I find
that the General Counsel proved, prima facie, that Respond-
ent was motivated to lay off Ralph Moore because of
Moore’s union activities.
I find that Respondent failed to show that Moore was laid
off for reasons not associated with his union activities. As
shown above, I find that Respondent’s asserted reasons for
the selection of Moore were untrue. Respondent failed to
prove that it had other reasons, which were not dependent
upon Moore’s protected activities, for Moore’s selection for
layoff. Respondent did not prove that Moore would have
been discharged on July 26; reemployed on August 16; or
laid off on November 10, 1990, in the absence of union ac-
tivities of its employees. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983); Delta Gas, Inc., 283 NLRB 391
(1987), enfd. 840 F.2d 309 (5th Cir. 1988); Southwire Co.
v. NLRB, 820 F.2d 453 (D.C. Cir. 1987); Yaohan of Cali-
fornia, 280 NLRB 268 (1986).
Earl Phillips
Earl Eddie Phillips worked for Respondent as a boiler-
maker fitter and rigger from August 14 to September 6,
1990.
Phillips solicited for the Union and passed out union hand-
bills before and after work while he worked for Respondent
at their Courtland, Alabama job. Phillips passed out leaflets
in the presence of supervisors. He also wore a union orga-
nizing committee badge while at work.
On August 24, Phillips was shown a written counseling
form by Superintendent Greg Reeves. The form indicated it
was a written warning for unsatisfactory work performance.
Under description of incident, Reeves wrote:
Mr. Phillip’s has on several occasion’s been sighted
writing a minute by minute log book of work duties in-
structed by Supervisor’s & job surrounding activity’s.
This occupy’s most of his time. Unabling him to do his
job.
Further violations will result in: Termination
Phillips did maintain a logbook in which he made nota-
tions regarding his work.
Phillips testified that he was told by Greg Reeves that the
warning would not go into his personnel file. Reeves told
him that he did not have complaints about Phillips’ work
other than Phillips’ keeping notes on the job. Reeves told
Phillips that he was doing a fine job.
Greg Reeves admitted that he told Phillips that the written
warning ‘‘ain’t got to be no big deal.’’ Reeves testified that
he did not tell Phillips that he would not place it in Phillips’
file. Reeves admitted that Phillips appeared to believe that he
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had been told that the notice would not go in his personnel
file. Reeves disagreed with Phillips regarding the quality of
Phillips’ work. According to Reeves he suspected that Phil-
lips was loafing when there was no supervision in the area
to watch Phillips and Reeves received numerous complaints
from other employees regarding Phillips’ note taking during
work. Reeves testified that some other employees expressed
concern that Phillips was writing something about them in
his notebook.
On August 28 Phillips, along with employee Ronnie Dex-
ter, took a list of hazards and safety problems on each floor,
to Respondent’s safety man. Later that day Phillips’ super-
visor, Todd Williams, brought him the list of safety problems
for their floor and told Phillips to correct the problems.
On the following morning, Assistant Superintendent Danny
Stacey told Phillips there had been a change in command and
that in the future, Phillips should report safety matters to his
foreman rather than to the safety man. Stacey had overheard
Phillips talking to the safety man about an untied oxygen
bottle shortly before Stacey talked with Phillips.
On the morning of September 6, 1990, Phillips’ foreman
Todd Williams told Phillips, ‘‘Greg Reeves got drunk last
night and he’s in a bad mood, so watch yourself today. You
know how Greg is.’’
According to Phillips, he was discharged that day even
though he was working under unsafe conditions and even
though he was producing at a higher than average rate of
production. Phillips testified that he complained about his
work area needing scaffolding but that Respondent never did
construct the scaffolding. Phillips was working some 200 feet
up and he had to straddle beams with his legs 4 feet apart
with a safety line tied around his waist.
Around 9:30 a.m., while Phillips was waiting for his help-
er to return with equipment, Greg Reeves came over and dis-
charged Phillips. Reeves told Phillips, ‘‘I’ve been watching
for a couple of days and you haven’t been doing your job
or your work.’’ Phillips testified that he was wearing his
union badge at the time of his discharge. During his dis-
charge Phillips learned that his August 24 written counseling
report had been placed in his personnel file. According to
Phillips, Reeves had assured him that counseling report
would not be included in his personnel file.
Ronnie Dexter testified that he observed Phillips’ work on
frequent occasion while Phillips worked for Respondent. Ac-
cording to Dexter, Phillips was a good worker. Dexter re-
called that Phillips’ crew of Phillips and two others, fitted
some 58 tubes during the 3 days ending on the day Phillips
was discharged. Dexter and his crew of two others, fitted 38
tubes during that same period. Dexter did admit on cross,
that his two crew members were not as fast as the two that
worked with Phillips.
However, Franklin Coleman testified that he worked with
Phillips and he disagreed with Dexter’s testimony regarding
the quality and speed of Phillips’ work. Coleman recalled
that he complained to Gregg Reeves about Phillips being as-
signed to work with Coleman. Coleman testified that he
asked Reeves, are ‘‘you mad at me putting me with Fast
Eddie [Phillips].’’
Credibility Determinations
Earl Phillips was somewhat evasive on cross-examination
and he tended to argue with Respondent’s attorney. Phillips’
gave extensive explanations about difficulties with his work.
Phillips was not always responsive to questions especially
following direct examination. For example on redirect he was
asked about the amount of time he spent on training his help-
er during the last 2 days he worked. Phillips failed to re-
spond to that query even though he was asked on two occa-
sions to direct his response to time required to train rather
than an explanation of what was involved in training.
I noticed that Phillips’ testimony differed in some respects
from other evidence offered by the General Counsel and
Charging Party. For example, Phillips testified that he took
notes only during lunch, breaktimes and before and after
work, with only one exception. The exception was the occur-
rence which resulted in Phillips being warned. That testi-
mony differed from the testimony of Ronnie Dexter. Dexter
who worked with Phillips was called by the General Coun-
sel. Dexter testified that before Phillips’ August 24 warning,
Phillips would make notations in his notebook during work
while Phillips was waiting for the welders to weld.
In most respects, I found the testimony of former super-
intendent Greg Reeves was less than believable. However, as
to critical testimony regarding Phillips, Reeves was supported
by the testimony of Dan Stacey.
To the extent their testimony conflicted, I credit Reeves
over Phillips.
As to Phillips Reeves testified,
He always had some big deal. Some reason he wasn’t
working.
That particular insight offered by Reeves was in full ac-
cord with the manner of Phillips’ performance as a witness.
Phillips offered extensive reasons why he was handicapped
in his jobs during the short period he worked for Respond-
ent.
In view of the above and my determination as to Phillips’
demeanor, which was not good, I credit the testimony of
Greg Reeves and Dan Stacey as to the events that led to
Phillips’ discharge.
Findings
The question regarding Respondent’s motivation for the
discharge of Earl Phillips is difficult. Phillips worked for Re-
spondent for a short period of time. Nevertheless, during that
time he was involved in union activities and in safety-related
activities.
Despite his activities which are protected, I am convinced
that Respondent believed that Earl Phillips was loafing on
the job. The evidence from Dan Stacey, that he watched
while Phillips repeatedly loafed when out of view of super-
vision, is convincing.
Regardless of an employee’s union affiliation, an employer
is not obligated to tolerate loafing to an extent greater than
is tolerated by nonunion employees. There was no evidence
offered to show that Respondent tolerated loafing by employ-
ees that were not involved in protected activity.
1043SUNLAND CONSTRUCTION CO.
The credited testimony of Superintendent Dan Stacey
proved that on the day of Phillips’ discharge, Stacey was
above Phillips’ work area when he noticed that Phillips did
not work for 20 minutes until Greg Reeves came into the
area. After that incident, Stacey and Reeves determined that
Stacey would observe Phillips on occasion when Reeves left
the area. Stacey observed that Phillips routinely ‘‘sat down’’
when his supervisor was out of sight.
Reeves and Stacey communicated by radio after Stacey
placed himself so that he could observe Phillips from above.
Phillips again sat down and did not work when Reeves left
Phillips’ work area. Stacey watched and reported by radio to
Reeves when Reeves left, that Phillips had sat down. As
Reeves returned, Phillips got up and appeared to work. When
Reeves was away on that occasion, Stacey continued to
watch Phillips for over 30 minutes. Phillips sat without
working for that full period which was not a breaktime. After
discussing the events and his planned action by phone with
Stacey, Reeves returned to Phillips and discharged him.
Respondent showed through its termination records that it
routinely discharged employees for infractions similar to its
allegations regarding Phillips. Other employees, as shown in
Respondent’s Exhibit 6, were discharged for sitting down on
the job and because of lack of production.
There was evidence that Danny Stacey told Phillips that
the chain of command had changed and that Phillips was to
report safety matters to his foreman rather than to the safety
man. I presume in view of Phillips’ unrebutted testimony,
that Respondent observed Phillips wearing a union badge and
passing out union leaflets.
Nevertheless, an employee is not protected by the Act
from disciplinary action simply because he engages in pro-
tected activity. In order to establish a violation it is necessary
for the General Counsel to prove that the employer was mo-
tivated by the protected activity. Here, the evidence may es-
tablish a prima facie basis for such a determination. How-
ever, in view of the credited evidence showing that Respond-
ent caught Phillips loafing on the job, I find that Phillips
would have been discharged in the absence of protected ac-
tivities. Ruff Electrical Construction Co., 296 NLRB 501
(1989); Canandaigua Plastics, 285 NLRB 278 (1987);
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
The complaint was amended to allege that the warning
issued to Phillips on August 24 was an additional violation
of the Act. As shown above, the record shows that Phillips
was making notations in his logbook during work. I find that
the General Counsel failed to show that Respondent was mo-
tivated to issue the warning by Phillips’ protected activity
and, in any event, the record illustrated that Phillips was
guilty of the infraction alleged in the warning and that he
would have received the warning in the absence of his pro-
tected activity. I do not credit Phillips’ testimony to the ef-
fect that he was told the warning would not be placed in his
personnel file.
Timothy Owens
Timothy Owens worked almost a year for Respondent—
from October 1989 until September 11, 1990. Owens oper-
ated a backhoe.
Owens signed a union authorization card on August 16,
1990. Beginning on the following Monday, August 20,
Owens wore a union badge while at work.
On August 20, the day Owens first wore a union badge
to work, he was told, for the first time, to get off his back-
hoe and help the laborers. Laborer Foreman Wendell Frost
told Owens that Civil Superintendent Charlie Russell had
told him to have Owens get off the backhoe and help the la-
borers get concrete up the elevator. While helping the labor-
ers, Owens was injured when a wheelbarrow he was helping
up a ramp to an elevator ran over his foot. For a time after
that incident Owens was placed on light duty. While on light
duty, Owens ran an elevator.
While he was running the elevator Greg Reeves, the boil-
ermaker superintendent, asked Owens why was a backhoe
operator wearing a Boilermakers union badge. Owens did not
respond to Reeves’ question.
Owens had a seat (i.e., a chair or stool) on the elevator.
On the second day he ran the elevator while on light duty,
General Foreman Joe Duran came on the elevator and re-
moved Owens’ seat.
About the last week of August, Owens overheard a con-
versation near his backhoe involving Foreman Wendell Frost
and some members of Frost’s crew of laborers. Frost pointed
to a laborer that was picking up sticks and paper who had
worn a union badge to work. Frost said, ‘‘See there, that’s
what the union badge will do for you. A laborer has no rea-
son—or no right to be wearing a union badge.’’ Owens over-
heard Frost go on to tell the laborers they were hired in there
to work and that’s what he expected them to do. Owens tes-
tified that he heard Frost tell the employee that was wearing
the union badge that if he did not get a certain area picked
up in a certain amount of time that he was gonna have to
fire him.
Wendell Frost testified that he did not recall ever pointing
out anyone for wearing a union badge. Frost testified that he
did not recall any laborer, other than Tim Owens who was
an operator, wearing a union badge.
On August 27, Owens was taken off light duty. He re-
turned to work on the backhoe. Joe Duran and Wendell Frost
told Owens that he was to get off and help the laborers when
he was not busy on the backhoe.
Owens testified that other operators including the crane
operators, cherry picker operators, and forklift operators were
not required to get off their equipment and help laborers.
On one occasion, according to Owens, while he was talk-
ing with a laborer foreman that he identified as Cecil Rob-
erts, a crane operator was sitting on his crane reading a
paper. The foreman told Owens that he could not understand
why they were so hard on Owens when other operators sat
around on their machines reading papers. Roberts told Owens
‘‘a man’s got his own right to do what he wants to do as
far as wearing a union badge, you know, or whatever.’’
There was no supervisor named Cecil Roberts. The parties
agreed that the supervisor described by Owens was a super-
visor named Cecil Moye.
On his last day before his discharge, after dinner, Owens
was working with two laborers in loading the backhoe, driv-
ing it to the dumpster and dumping scrap wood. According
to Owens’ testimony, he got some splinters in his hand while
reloading some scrap wood that had fallen out of his back-
hoe. When he returned and the laborers were loading another
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
load of scrap wood, Owens sat on the backhoe and attempted
to remove splinters from his hand with his fingernail clip-
pers.
While there, Superintendent Russell came to Owens and
told him to get off and help the laborers load his backhoe.
Owens testified that he got off and walked into the building
where the laborers were getting scrap wood.
Owens’ testimony from that point follows:
The laborers were just piddling around ’cause there
wasn’t no more wood in there to get.
I was standing there trying to get the splinters out of
my hand, and the freight elevator—that’s what they
haul material up and down with—it came down and
brushed me on the shoulder.
Well, Joe Duran walks up and he said, ‘‘Didn’t your
supervisor tell you to get off and help the laborers load
the bucket?’’
And I said, ‘‘Yes, Joe, he did.’’ I said, ‘‘They’ve got
my bucket loaded.’’ And I was trying to show him my
hand and the splinters but he didn’t act like he was
concerned. He said, ‘‘Didn’t your supervisor tell you to
get down and do that?’’
I said, ‘‘Yeah.’’
He said, ‘‘The big man has been on me about you.’’
He said, ‘‘Come on; let’s go to the gate; you’re fired.’’
Before his discharge, Owens had received one warning.
Around September 1989, he was warned about absenteeism.
Respondent did not dispute that Owens was required to
help the laborers in addition to his backhoe duties.
Joe Duran who was the general foreman, testified that he
told Owens to help load the backhoe on occasions when it
was necessary to load the backhoe by hand. Duran recalled
that he told Owens to help load both before and after he no-
ticed Owens wearing a union badge.
According to Wendell Frost, when Frost first became la-
borer foreman, Owens, who was under Frost’s supervision,
was busy with excavation work. When the job began to play
out there was not enough excavation work to keep the back-
hoe operator busy full time. Both Duran and Frost testified
they were told by supervision, to keep the backhoe operator
as well as other employees, busy.
Charles Russell who was formerly employed by Respond-
ent as civil superintendent, testified that he was hired at the
Courtland job on June 7 or 8, 1990. Russell was over the
general foreman, Joe Duran, who, in turn supervised the
foremen.
When Russell was hired, there was some excavation work
remaining under the ‘‘precipitator.’’ That work lasted only a
few weeks. From that time until the job was completed there
was only occasional work for the backhoe. Russell admitted
that at that time he directed his general foreman, Joe Duran,
to keep the backhoe operator busy. According to Russell the
loading of trash required loading by hand on occasion and
it was on those occasions, unlike the situation when earth
was being moved or when trash could be loaded by scoop-
ing, that the backhoe operator could help by getting down off
his machine.
Credibility Determinations
As to the question of credibility, I credit Tim Owens’ tes-
timony regarding the late August conversation overheard by
him in which Wendell Frost commented on a laborer wear-
ing a union badge. As to that incident, Frost appeared un-
comfortable. Frost appeared to protest too vigorously as to
the reason why he would not point out any one for wearing
a union badge.
The record shows that Owens was mistaken in his identity
of a foreman as Cecil Roberts. That foreman was actually
Cecil Moye. In many respects, I credit the testimony of Cecil
Moye. Moye did not deny that he told Owens that he did not
understand why Respondent was hard on Owens when other
operators were permitted to sit on their machines and read
papers and that a man has a right to wear a union badge.
I credit the testimony of Timothy Owens. Owens testified
about several matters which did not reflect favorably on his
case. Additionally, with the exception of the testimony of Joe
Duran regarding Owens’ discharge and Wendell Frost as to
his comments about a laborer wearing a union badge, there
was little evidence which directly conflicted the testimony of
Owens. There was some dispute as to whether Owens was
removing splinters with a nail clipper or clipping fingernails
with a nail clipper, before his discharge. However, due to the
close similarities between those two observations, I am not
persuaded that reflects an actual conflict.
As to the incident which led to Owens’ discharge, I found
Owens to be a credible witness and I credit his account of
that incident.
Cecil Moye testified that he observed Owens was just sit-
ting on the backhoe when Superintendent Russell told Owens
to assist the laborers load the backhoe. Owens got off the
backhoe and walked over to the laborers but, instead of help-
ing the laborers, Owens stood there and clipped his finger-
nails. I find that Moye’s observations were reasonable even
though I credit the testimony of Tim Owens. According to
Owens he was not clipping his nails. Instead Owens contends
that he was using his nail clippers to try and remove splinters
from his hand.
I do not credit the testimony of Joe Duran regarding the
events that led to Owens’ discharge. The testimony of Duran
differed from Owens as to whether Owens volunteered that
he was ready to leave the job. In view of the entire record
and my observation of the demeanor of Duran and Owens,
I am persuaded that Tim Owens’ testimony was correct.
I find that Owens was told to get off his tractor and help
the laborers load. Subsequently Duran came over and fired
Owens when he observed Owens standing near the laborers
using his fingernail clippers to try and remove splinters.
Findings
There are two general complaint allegations regarding Tim
Owens. It is alleged that Wendell Frost told employees that
an employee had received a work assignment because that
employee was wearing a union badge. As shown above that
alleged comment was overheard by Tim Owens. I credited
Owens in that regard and find that Wendell Frost told mem-
bers of his crew during the last week in August 1990, that
a laborer was picking up sticks and paper because he was
wearing a union badge and that a laborer had no right to
1045SUNLAND CONSTRUCTION CO.
wear a union badge. I find that comment constitutes a viola-
tion of Section 8(a)(1) of the Act.
Other allegations in the complaint involve an alleged
change in Owens’ job duties and Owens’ discharge.
Credited evidence shows that Timothy Owens was first
told to get off his backhoe and help the laborers, on the day
he first wore a union badge. Before that occasion Owens’ job
duties were exclusively those of an operator.
I find that the General Counsel proved a prima facie case
including proof of Respondent’s animus toward Owens’
union activities; Respondent’s knowledge of Owens’ union
activities; and timing as to Respondent’s knowledge and its
subsequent adverse actions toward Owens.
As to animus, credited evidence proved that Owens’ job
was changed when he started wearing a union badge; Owens
was asked by Superintendent Reeves why he, an operator,
was wearing a Boilermakers union badge; Owens was de-
prived of a seat in the elevator on the second day he was
on light duty when Joe Duran removed the seat and offered
no explanation to Owens as to why the seat was being re-
moved; Foreman Frost commented that a laborer was picking
up trash because he was wearing a union badge and Frost
then threatened the laborer with discharge unless he finished
his job in a timely manner; and Foreman Moye told Owens
that he did not understand why Respondent was hard on
Owens and not hard on other operators and that a man
should have the right to wear a union badge.
There was no dispute but that Owens’ job changed. I cred-
it Owens’ testimony showing that change actually occurred
on the day he first wore a union badge at work.
As shown above, I credit the testimony of Owens that Su-
perintendent Greg Reeves asked him why he, an operator,
was wearing a Boilermakers union badge.
I also credit Owens’ testimony that Joe Duran removed the
seat from the elevator without explanation and I credit
Owens’ testimony as shown above, regarding Wendell
Frost’s comments in violation of Section 8(a)(1).
Finally, as to this particular element of proof, I credit
Owens’ testimony, which was unrebutted, that Foreman
Moye (Roberts), explained that he could not understand why
Respondent was harder on Owens than other operators and
that a man should have the right to wear a union badge.
As to knowledge, none of Respondent’s supervisors denied
that Owens did wear a union badge while at work. Owens
testified without rebuttal that he started wearing a Boiler-
makers union badge at work on August 20, 1990.
As to timing, the credited evidence proved that imme-
diately on Owens’ first wearing a union badge to work on
August 20, Respondent changed his job duties. Owens was
told to get off his backhoe and help the laborers. Before that
day Owens had never been required to get down and help.
Subsequently, approximately 3 weeks after he started wear-
ing a union badge, Owens was fired after being told to get
off his machine and help the laborers load his backhoe.
Owens did as he was told. He got off the backhoe but, on
his realization that the laborers had completed the loading of
his backhoe, he tried to remove some splinters from his hand
with his fingernail clippers. At that time, Superintendent
Duran came over and discharged Owens.
That evidence proves, prima facie, that Respondent
changed Owens’ job duties and discharged Owens because of
Owens’ wearing a union badge while at work.
Respondent offered evidence showing that the Courtland
job was winding down and that the nature of the backhoe
work changed as a result of that, as opposed to changing be-
cause of union activity.
According to Respondent, as the Courtland job was near-
ing completion the nature of the work for the backhoe had
to change. Before that time Respondent used the backhoe to
move earth and dig ditches.
Respondent contended that the character of the backhoe
job after August lent itself to having the backhoe operator
help load his machine. The backhoe was used to remove
some trash that required loading into the backhoe by hand.
While the backhoe was being loaded by hand, the backhoe
remained stationary. There was nothing for the operator to do
other than help load or to sit on the machine doing nothing
while other employees loaded the backhoe. Such was not the
case with other jobs with other equipment such as the cherry-
picker or the crane. Those operations did not lend themselves
to the operator getting off the machine and helping by hand.
In cases of this type jurisprudence requires me to first de-
termine whether the General Counsel has proved a prima
facie case and, if that answer is yes, then I must question
whether the allegedly violative actions would have occurred
in the absence of protected activities. Before I can determine
that a violation has been proved, I must determine that sub-
stantial evidence supports a finding that the General Counsel
proved a prima facie case and that Respondent failed to
prove that the actions would have occurred in the absence of
protected activities.
As shown above, I find that the evidence illustrated con-
clusively that Respondent was motivated to change Owens’
job duties and discharge him because he started wearing a
union badge. Despite a showing that Respondent’s job was
winding down, I find that Respondent failed to prove that
Owens’ job would have changed and he would have been
discharged in the absence of his union activities.
In that regard I am mindful that the duties of the backhoe
differed from the duties of the cranes and cherry pickers. It
was possible for a backhoe operator to help load his backhoe
when moving small items of trash while there was no show-
ing that the duties of the cranes or cherrypickers lent them-
selves to individual assistance. Nevertheless, the timing of
Respondent’s instructions to Owens was never explained.
There was no showing why Respondent’s instructions to
Owens to get off his machine and help load occurred pre-
cisely on the day he started wearing a union badge.
Additionally, I find that the credited evidence proved that
this was not a situation where Respondent simply expanded
the duties of the backhoe operator to include loading the
backhoe. Respondent argues that Owens’ job change was
limited to those occasions where his backhoe was being load-
ed by hand by one laborer. According to Superintendent Rus-
sell, his instructions were to have Owens help load on those
occasions only.
However, the credited record shows that beginning on the
first day Owens wore a union badge, he was told by his fore-
man, that Superintendent Russell had ordered him to have
Owens get off the backhoe and help the laborers get concrete
up the elevator. That illustrates that Owens’ job change was
far more extensive than simply helping to load his machine
on those occasions when a single laborer was loading small
trash into the backhoe.
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Finally, Owens was fired on September 11 before he was
permitted to explain why he was not loading the backhoe.
Owens had obeyed Superintendent Russell’s instructions to
get down off the machine. As shown above, after Owens
walked over to the laborers, Joe Duran walked over to
Owens and fired him even though Duran admittedly did not
hear Russell’s instructions to Owens and Duran failed to
consider Owens’ explanation for his actions. Although
Owens explained that his backhoe had already been filled by
the laborers and Owens tried to show Duran that he was re-
moving some splinters from his hand, Duran did not pause
to consider either of those matters.
In view of the above, I am convinced that Owens’ job du-
ties were not changed because of overall changes in the char-
acter of the job. His changed duties were more extensive
than was necessary to accommodate the alleged change in re-
quirements for the backhoe. Respondent’s asserted reasons
for the changes in Owens’ job and for his discharge, do not
accord with the credited evidence. I find that the credited
record failed to support Respondent’s contentions. Respond-
ent failed to prove that Owens would have been discharged
in the absence of his protected activities. Hunter Douglas,
Inc., 277 NLRB 1179 (1985); Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983); Delta Gas, Inc., 283 NLRB 391
(1987), enfd. 840 F.2d 309 (5th Cir. 1988); Southwire Co.
v. NLRB, 820 F.2d 453 (D.C. Cir. 1987); Yaohan of Cali-
fornia, 280 NLRB 268 (1986).
CONCLUSIONS OF LAW
1. Sunland Construction Company, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL–CIO is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. Respondent, by threatening its employees that an em-
ployee received an unfavorable work assignment because the
employee was wearing a union badge, engaged in conduct
violative of Section 8(a)(1) of the Act.
4. Respondent, by discharging employees Timothy Owens,
Larry Jackson, Charles F. Kilpatrick, Ralph O. Moore, Dan
H. Murchie, James C. Robbins, Jonathon L. Rudolph, and
Thomas C. Vickers, changing the work assignments of Tim-
othy Owens and by refusing to reinstate and laying off em-
ployee Ralph O. Moore, because of its employees’ activities
on behalf of Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers, AFL–CIO has vio-
lated Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has illegally discharged its
employees in violation of sections of the Act, I shall order
Respondent to offer Timothy Owens, Larry Jackson, Charles
F. Kilpatrick, Ralph O. Moore, Dan H. Murchie, James C.
Robbins, Jonathon L. Rudolph, and Thomas C. Vickers im-
mediate and full reinstatement to their former positions, or,
if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges. I further order Respondent to make Timothy
Owens, Larry Jackson, Charles F. Kilpatrick, Ralph O.
Moore, Dan H. Murchie, James C. Robbins, Jonathon L. Ru-
dolph, and Thomas C. Vickers whole for any loss of earnings
they suffered as a result of the discrimination against them
and that Respondent remove from its records any reference
to the unlawful actions against its employee and notify Tim-
othy Owens, Larry Jackson, Charles F. Kilpatrick, Ralph O.
Moore, Dan H. Murchie, James C. Robbins, Jonathon L. Ru-
dolph, and Thomas C. Vickers in writing that Respondent’s
unlawful conduct will not be used as a basis for further per-
sonnel action. Backpay shall be computed as described in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
described in New Horizons for the Retarded, 283 NLRB
1173 (1987).
If it is necessary to determine whether Larry Jackson,
Charles F. Kilpatrick, Dan H. Murchie, James C. Robbins,
Jonathon L. Rudolph, and Thomas C. Vickers were reinstated
following their July 26, 1990 terminations, that issue may be
considered in compliance proceedings.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Sunland Construction Company, Inc.,
Courtland, Alabama, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Engaging in conduct in violation of Section 8(a)(1) by
threatening its employees that an employee received an unfa-
vorable work assignment because the employee was wearing
a union badge.
(b) Discharging, failing to reinstate, changing the work as-
signments, and laying off its employees because of their pro-
tected activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Timothy Owens, Larry Jackson, Charles F. Kil-
patrick, Ralph O. Moore, Dan H. Murchie, James C. Rob-
bins, Jonathon L. Rudolph, and Thomas C. Vickers imme-
diate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, and make Timothy Owens,
Larry Jackson, Charles F. Kilpatrick, Ralph O. Moore, Dan
H. Murchie, James C. Robbins, Jonathon L. Rudolph, and
1047SUNLAND CONSTRUCTION CO.
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Thomas C. Vickers whole for any loss of earnings plus inter-
est, they suffered by reason of its illegal actions.
(b) Rescind its discharges issued to Timothy Owens, Larry
Jackson, Charles F. Kilpatrick, Ralph O. Moore, Dan H.
Murchie, James C. Robbins, Jonathon L. Rudolph, and
Thomas C. Vickers; its change in work assignments issued
to Timothy Owens; and its layoff issued to employee Ralph
O. Moore, and remove from its files any reference to those
actions, and notify each of those employees in writing that
this has been done and that evidence of its unlawful actions
will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, and timecards, personnel
records, reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(d) Post at its facility in Courtland, Alabama, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the notice,
on forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.